IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 75072-1-I
Respondent, DIVISION ONE
V. UNPUBLISHED OPINION
DAVID ZACHERY MORGAN,
Appellant. FILED: March 9, 2020
CHUN, J. — This matter comes before us on remand from the Washington
State Supreme Court. This court reversed David Morgan’s convictions for
attempted first degree murder, first degree assault, and first degree arson. The
Supreme Court reversed the Court of Appeals decision, reinstating Morgan’s
convictions and remanding to us to address the remaining issues he raises in his
appeal. We affirm.
BACKGROUND
The State charged Morgan with attempted first degree murder, first degree
assault, and first degree arson, all alleged as crimes of domestic violence
committed against his ex-wife, Brenda Welch. Police found Welch lying in a pool
of blood in Morgan’s garage while the house was on fire. She suffered
permanent injuries and did not remember what happened to her.1 A first trial
1 The facts are set forth in detail in this court’s unpublished opinion. State v.
MorQan, noted at 3 Wn. App. 2d 1063 (2018). We repeat only those facts necessary to
resolve the issues before us now on remand.
No. 75072-1-1/2
ended in a mistrial after the prosecutor elicited an opinion from an expert witness
the State did not disclose in pretrial discovery. After a second trial, a jury found
Morgan guilty as charged.
Morgan appealed, raising a number of issues: (1) the trial court erred by
denying his motion to dismiss for prosecutorial misconduct, (2) retrial of the
charges following a mistrial violated the prohibition against double jeopardy,
(3) the trial court erred by denying his motion to suppress evidence of his clothing
that was seized without a warrant, (4) the trial court erred by denying his motion
to suppress his statements to police that were not preceded by Miranda2
warnings, (5) the prosecutor committed misconduct in closing argument by
comments that shifted the burden of proof and impugned defense counsel,
(6) the trial court erred by instructing the jury that it need not be unanimous on
the means by which he committed the arson, and (7) the trial court erred by
refusing to instruct the jury it must presume the fire was caused by accident or
natural causes.
This court held the trial court did not abuse its discretion by declining to
dismiss the charges following the mistrial trial motion and double jeopardy did not
bar retrial, but reversed the trial court’s order denying suppression of Morgan’s
clothing, concluding that neither the exigent circumstances nor the plain view
exception to the warrant requirement applied. Morgan, Slip op. at 1, 27. Holding
this was reversible error, we remanded for a new trial. Morgan, Slip op. at 29,
35. We then proceeded to “only address those remaining issues that may recur
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 75072-1 -1/3
at trial on remand,” and held that Miranda warnings were not required during
Morgan’s interrogation and the trial court did not abuse its discretion by refusing
to give an instruction that a fire is presumed accidental or caused by natural
causes. Morgan, Slip op. at 29. We did not reach Morgan’s claims of
prosecutorial misconduct in closing argument or his challenge to the first degree
arson “to convict” instruction. Morgan, Slip op. at 29 (finding “[ut is unnecessary
to address the other issues raised in this appeal”).
The State petitioned for review and the Washington State Supreme Court
reversed, holding that the plain view exception applied to permit the seizure of
Morgan’s clothing. The Supreme Court reinstated Morgan’s convictions and
remanded to this court for further proceedings. Accordingly, we address the
remaining issues not reached in the first appeal.
ANALYSIS
Jury Unanimity
Morgan contends the first degree arson “to convict” instruction violated his
constitutional right to jury unanimity because it instructed the jurors that they did
not need to be unanimous. That instruction states:
To convict the defendant of the crime of Arson in the First
Degree as alleged in Count Ill, each of the following four elements of
the crime must be proved beyond a reasonable doubt:
(1) That on or about the 16th day of November, 2014, the
defendant caused a fire;
(2) That the fire
(a) damaged a dwelling or
(b) was in a building in which there was at the time a human
being who was not a participant in the crime; and
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No. 75072-1-1/4
(3) That defendant acted knowingly and maliciously; and
(4) That this act occurred in the State of Washington.
If you find from the evidence that elements (1), (3), (4), and any
of the alternative elements (2)(a), or (2)(b), have been proved
beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty. To return a verdict of guilty, the jury need not be
unanimous as to which of alternatives (2)(a), or(2)(b), have been
proved beyond a reasonable doubt, as long as each juror finds that
at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all the evidence, you have
a reasonable doubt as to any one of elements (1), (2), (3) or (4), then
it will be your duty to return a verdict of not guilty.
The court gave this instruction to the jury over the defense’s objection.
The standard of review for a trial court’s decision on whether to give a jury
instruction depends on the reason for the decision. If the decision was based on
a factual determination, we review it for an abuse of discretion. State v. Condon,
182 Wn.2d 307, 315-316, 343 P.3d 357 (2015). If, as in this case, it was based
on a legal conclusion, we review it de novo. Condon, 182 Wn.2d at 316.
Morgan claims he has a right to jury unanimity on the specific means of
committing the crime, citing the dissent in State v. Franco, 96 Wn.2d 816, 833-
35, 639 P.2d 1320 (1982) (Utter, J., dissenting) and case law from other
jurisdictions. But he also noted our Supreme Court’s pending consideration of a
similar to convict instruction. Since the filing of Morgan’s briefing, the Supreme
Court issued its opinion in State v. Armstrong, 188 Wn.2d 333, 335, 340-343,
394 P.3d 373 (2017), and reaffirmed well-settled case law that, in alternative
means cases, jury unanimity on the specific means is not required where
substantial evidence supports both alternatives submitted to the jury.
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No. 75072-1-1/5
Here, there was substantial evidence of each means. The evidence
established that the fire damaged Morgan’s house, a dwelling, and that Welch, a
non-participant in the crime, was present in the building at the time of the fire.
Accordingly, the “to convict” instruction correctly stated the law. See Armstrong,
188 Wn.2d at 344 (noting that while an instruction on jury unanimity on the
alternate method is preferable, “an instruction being preferable does not make it
a requirement”).
Prosecutorial Misconduct
Morgan next contends the prosecutor committed misconduct during
rebuttal closing argument by making comments that impugned defense counsel
and shifting the burden of proof. Specifically, he challenges the prosecutor’s
comments that one of Morgan’s lawyers did not attend defense interviews of the
State’s witnesses and that Morgan did not provide an explanation for questions
raised by his version of the facts.
We review allegations of prosecutorial misconduct for an abuse of
discretion. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). “To
prevail on a claim of prosecutorial misconduct, the defendant must establish ‘that
the prosecutor’s conduct was both improper and prejudicial in the context of the
entire record and the circumstances at trial.” State v. Thorgerson, 172 Wn.2d
438, 442, 258 P.3d 43(2011) (internal citation and quotation marks omitted)
(quoting Statev. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). The
defendant bears the burden of establishing prejudice, which requires the
defendant to prove there is a substantial likelihood that the misconduct affected
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No. 75072-1-1/6
the jury’s verdict. Thorgerson, 172 Wn.2d at 442-443. When reviewing a claim
that prosecutorial misconduct requires reversal, we review the statements in the
context of the entire case. Thorgerson, 172 Wn.2d at 443.
Morgan first challenges the following comments as impugning defense
counsel and shifting the burden of proof:
And if there was any reason to believe that every single known
fact would be reported by these firefighters at 1:09 in the morning,
after they’ve saved a woman’s life, after they’ve fought other fires,
after they cleaned their equipment Why did Todd Reeves tell you
--
this morning, I interviewed 40 people; we had statements from most
of these folks, reports, forensic reports? Well, there may be more
questions. And in those few interviews where Ms. Silbovitz was
there, even when you were done, did she ask some questions? Yep.
Well, Mr. Wackerman ever show up at any of these interviews? No.
And that’s fine. But they were never asked until —
At trial Morgan objected to these comments as “burden shifting.” The court
overruled the objection, stating, “The jury is reminded that this is closing
argument, as distinct from the evidence portion.”
“In closing argument the prosecuting attorney has wide latitude to argue
reasonable inferences from the evidence, including evidence respecting the
credibility of witnesses.” Thorgerson, 172 Wn.2d at 448. But “[i]t is improper for
the prosecutor to disparagingly comment on defense counsel’s role or impugn
the defense lawyer’s integrity.” Thorgerson, 172 Wn.2d at 451 (citing State v.
Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008); State v. Necirete, 72 Wn.
App. 62, 67, 863 P.2d 137 (1993)). Comments implying defense counsel’s
deception or dishonesty in the context of a court proceeding impugn defense
counsel’s integrity and amount to misconduct. Thorgerson, 172 Wn.2d at 452
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No. 75072-1-117
(referring to defense counsel’s presentation as “sleight of hand”); Lindsay, 180
Wn.2d at 433 (stating that defense counsel had “pitched. . . a crock” to the jury);
see ~so Warren, 165 Wn.2d at 29-30 (describing defense counsel’s argument as
a “classic example of taking these facts and completely twisting them to their own
benefit, and hoping that you are not smart enough to figure out what in fact they
are doing”); Negrete, 72 Wn. App. at 66 (stating defense counsel was “being paid
to twist the words of the witnesses”). In Lindsay, the court noted the difference
between comments implying deception and dishonesty that impugned counsel,
and those that were “unprofessional,” “obnoxious,” “rude” and focused on the
lawyer’s personalities, which “alone, probably did not fundamentally undermine
defense counsel’s role or integrity.” 180 Wn.2d at 432-33.
“A prosecutor generally cannot comment on the defendant’s failure to
present evidence because the defendant has no duty to present evidence.”
Thorcierson, 172 Wn.2d at 453. But “[ijt is not misconduct ... for a prosecutor to
argue that the evidence does not support the defense theory.’ As an advocate,
the prosecuting attorney is entitled to make a fair response to the arguments of
defense counsel.” State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997)
(quoting State v. Russell, 125 Wn.2d 24, 87, 882, P.2d 747 (1994)); In re Pers.
Restraint of Caldellis, 187 Wn.2d 127, 143-44, 385 P.3d 135 (2016).
Morgan asserts the comment about Mr. Wackerman’s failure to “show up”
at the interviews impugned defense counsel by suggesting he was lazy or failed
to perform a duty. But Morgan fails to show this comment implies deception or
dishonesty in a court proceeding. See Thorgerson, 172 Wn.2d at 452; Lindsay,
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No. 75072-1-1/8
180 Wn.2d at 433. Viewed in context, the prosecutor appeared to respond to the
defense argument that the State’s witnesses testified inconsistently with what
they said in defense interviews. As defense counsel argued:
Why do all these inconsistencies matter? Because credibility
matters. It affects the assessment of Mr. Morgan; it shows that the
testimony these witnesses have provided is colored by their interest
in serving the prosecution. It’s for all of these fire- --most of these
--
firefighters, their testimony’s not neutral; it’s not disinterested.
There are other ways in which they test- -- their credibility is at
issue; they testified inconsistently.
While the purpose of the prosecutor’s reference to Mr. Wackerman is not
entirely clear, he appears to have been pointing out that Mr. Wackerman could
not know if the witnesses’ testimony was inconsistent with what they said in the
defense interviews since he was not there. In any event, this single reference to
one of Morgan’s lawyers not attending defense interviews does not imply
defense counsel engaged in deception or dishonesty in a court proceeding, or
otherwise undermine defense counsel’s role.3 Morgan fails to show this
comment rises to the level of impugning defense counsel as established in cases
where the court found misconduct.
For the same reasons, Morgan fails to show this comment improperly
shifted the burden of proof. Morgan asserts that by making this comment, the
prosecutor “claimed that defense counsel had failed to fulfill his investigatory
obligations by failing to attend interviews.” But again, viewed in context, it was
~ In any event, the prosecutor did say, “And that’s fine,” after noting
Mr. Wackerman did not show up at the interviews, apparently acknowledging that
attending the interviews was not counsel’s obligation. Morgan asserts this was actually
an underhanded way of saying it was not “fine,” but here it is impossible for us to discern
what was meant beyond the actual words in the transcript.
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No. 75072-1-119
likely a response to the defense argument that the witnesses lacked credibility
because their testimony was inconsistent. If Mr. Wackerman did not attend the
interviews, he could not know for sure what was asked and what they said.
Morgan fails to show the prosecutor’s comment amounts to misconduct. ~
Brown, 132 Wn.2d at 566 (not misconduct for prosecutor to argue evidence does
not support the defense theory).
Moreover, Morgan fails to show this comment prejudiced the outcome of
the case. See Thorgerson, 172 Wn.2d at 452 (even though comment impugning
counsel amounted to misconduct, it was not likely to have altered the outcome of
the case where relevant evidence showed the defendant committed the crimes).
Relevant evidence established that Morgan committed the crimes. The State’s
evidence established the fire was intentionally set, that Morgan knew about the
fire in advance, and that he was standing close to Welch when she was
assaulted. Given this relevant evidence of Morgan’s guilt, it was unlikely that this
brief, isolated, and not entirely clear comment about defense counsel’s
participation in a witness interview affected the jury’s verdict.
Morgan further claims the prosecutor improperly shifted the burden of
proof by the following comments:
No soot. If he had been helping her take off that sweater, he
would have breathed in that soot. If he had lit her on fire and ran out
of that room and chased her down and hit her, there would be no
soot. There would be no smoke inhalation. Thank you. And the one
question that isn’t answered by his theory, by his question —
The one question that his explanation that you’ve heard does not
provide for us, was this self-inflicted? Did she break the eye herself,
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No. 75072-1-I/ID
smash that in herself, wound herself, and spray blood on the left
handed Mr. Morgan’s left arm?
Morgan objected as “burden shifting,” and the court overruled the objection.
These comments were responsive to the defense closing argument, which
focused on Morgan’s version of the facts. They were not improper. As defense
counsel argued: Mr. Morgan has given you a version of what happened. Has
anyone given you a version to contradict this? No. Has the State offered or
proved an alternative story? No.” He then proceeded to describe in detail
Morgan’s version of events, including his efforts to help her take off her sweater
while she was on fire.
Morgan’s reliance on State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076
(1996), is misplaced. There, the prosecutor argued there was no reasonable
doubt because there was no evidence the victim was lying or confused and if
there had been any such evidence, the defendant would have presented it.
Fleming, 83 Wn. App. at 214. But here, the prosecutor pointed out
inconsistencies between Morgan’s version of events and the evidence that was
presented. The prosecutor did not tell the jury Morgan had to disprove the
State’s evidence or he should be convicted because of a lack of evidence, as in
Fleming. Rather, the prosecutor argued Morgan’s theory of the case was
inconsistent with the evidence that was presented. This was a “fair response” to
defense argument. ~ [n re Pers. Restraint of Caldellis, 187 Wn.2d at 143-44
(prosecutor’s statements that defense counsel forgot a big reason why defendant
did not testify and that he could think of one more, were fair response to defense
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No. 75072-1-I/il
counsel’s closing where defense counsel suggested many reasons why
defendant would not testify).
Moreover, as the State points out, when a defendant gives a partial
statement to police, a prosecutor may comment on inconsistencies between the
defendant’s “partial silence” and defense theories pursued at trial. State v. Scott,
58 Wn. App. 50, 55, 791 P.2d 559 (1990) (citing State v. Belgarde, 110 Wn.2d
504, 511, 755 P.2d 174 (1988)). Here, as presented in closing argument,
Morgan’s theory of the case was based largely on his statements to police. In
responding to that theory, the prosecutor properly commented that those
statements failed to explain key facts, pointing out inconsistencies between the
statements and the evidence, not Morgan’s failure to present evidence. Morgan
fails to show the prosecutor’s comments improperly shifted the burden of proof.
Because Morgan has not established that any of the challenged comments
amounts to prosecutorial misconduct, we need not determine whether they
prejudiced the outcome of the trial.
We affirm.
WE CONCUR: